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Why the National Popular Vote Would Undermine Democracy: Save the Electoral College
- Robert M. Hardaway
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Welcome to Healing From Within. I am your host Sheryl Glick author of A New Life Awaits the final book in a trilogy that shares the thought that our challenges are not economic political or societal, but a disconnect from our true being or soul wisdom. Today Sheryl welcomes Professor Robert M. Hardaway author of Saving the Electoral College. Professor Hardaway is a professor of law at the University of Denver Stum College of Law where he teaches evidence and civil procedure and election law.
Robert as listeners of Healing From Within are well aware Sheryl and her esteemed guests explore all aspects of the human condition in order to discover more about living a more authentic and productive physical life journey while exploring our human and divine capacity to grow in wisdom and love for Self others and life, hopefully, with honesty and integrity as the law provides for.
In today’s episode of Healing From Within Robert M. Hardaway discusses the case for the continuation of the Electoral College explaining how the Electoral college actually works, how it is supposed to work and how it might be formed. He first looks at the Constitutional Convention the Twelfth Amendment and historical elections where the Electoral College has come into play. Perhaps we can understand the 2016 election which caused many pundits and citizens alike to decry the Electoral College and the 2020 Election and problems leading to a huge Rally in D C when congress tried to determine how to certify the Electoral Votes from states that had questionable voting practices
When Robert is asked to think back to his childhood and remember a person place or event that might have signaled to or those around the values interests and lifestyle he might embrace as an adult for Sheryl feels our destiny or life plan is with us at the beginning and we search to know our inner awareness through the experiences people and projects that we select that often most advances our soul development and the reasons we chose a physical life.
Robert immediately tells us his father had a profound effect on all that he values as he was a man of patience virtue and kindness and lived to be 104 years old. He had a miraculous life journey and was blessed to see his son accomplish much to protect the law.
Robert goes on to tell us that he first became interested in the Electoral College as a high school student at St. Albans School in Washington, D.C. Every Thursday evening we would meet in government class in which students would engage in mock congressional debate on an issue of national interest, proposing bills, arguing for or against them, and then voting. One of the bills proposed was to “abolish the Electoral College.” I remember well one classmate of mine in that class by the name of Al Gore. Of course, none of us at that time knew the enormity that this issue would play in the future career of our classmate when he became a candidate for president in the 2000 election.
This government class debate was in large part a reenactment of a real life debate held just a few years before in the U.S. Senate in March 1956. As documented in the Congressional Record, 3 a cadre of U.S. senators, led in part by Republican senator Everett Dirksen, had taken it upon themselves to initiate demands that since 1789 have now become a bidecade ritual—namely, to “abolish” the Electoral College. These bidecade rituals inevitably involve attacks on the Founding Fathers’ plan for presidential elections and the ratification of that plan by the 13 original colonies. At issue in the Senate debates of 1956 was Joint Resolution 31, which proposed a rewriting of major portions of the U.S. Constitution in order to impose upon the American people a so-called direct election scheme.
Professor Hardaway goes on to write, “Virtually alone against this cabal of senators was a young senator, John F. Kennedy, who in the manner of Jimmy Stewart in Mr. Smith Goes to Washington gave a speech in the U.S. Senate that now serves as one of the most valiant and dramatic cases for saving the Electoral College that has ever been made in U.S. history. To one senator’s tired claim that the Electoral College is somehow “undemocratic,” Kennedy firmly responded that while direct election “purports to be more democratic, [it] would in fact increase the power and encourage splinter parties,” with the result that presidents would be elected with only a small percentage of the popular vote. History has shown Kennedy’s concerns to be only too prescient. “
The facts of the matter are that the system of [direct election] will greatly increase the likelihood of a minority president. . . . [It] would break down the federal system under which most states entered the union, which provides a system of checks and balances to insure that no area or group shall obtain too much power. — Senator John F. Kennedy
Professor Hardaway goes on to tell us what he feels the Founding Fathers had in mind by establishing that precedent.
The confusion or misunderstandings about the Electoral College began at the beginning of our nation’s founding. One of the first proposals to abolish the Electoral College came in the final hot days of the 1787 Constitutional Convention itself. The bedraggled, tired, and very hot delegates had left to the end of the deliberations the contentious question of how states would be represented in any proposed national legislature. Small states feared that delegates from such large states as New York and Pennsylvania would try to bully them into giving up the right of equal representation in the Senate that they had enjoyed under the Articles of Confederation. Rhode Island refused to send any delegates at all, and tiny Delaware only sent delegates with letters making it clear that they were to walk out and form their own country the moment any big-state bullies suggested that they give up their right to equal representation in any new proposed legislature or in the election of a president.
By this time, it was generally conceded that there was very little hope of uniting all the 13 colonies into one cohesive union. Even an exasperated George Washington, who had only reluctantly agreed to moderate the convention in the first place, thought there was little chance of forming a single united country and a cohesive union and “despaired of seeing a favorable issue to the proceedings of the convention and do therefore repent having had any agency in this business.”
The larger states had already hedged their bets and formed their own amalgamations or incipient nations and even imposed tariffs and customs barriers and boundaries on their neighboring states. The smaller states were also contemplating going their own way and thus were not inclined to be marginalized in a union dominated by arrogant big-state bullies. In this contentious environment, small-state delegates such as Gunning Bedford were announcing that they would instead form their confederations and amalgamations with foreign powers and “find some ally of better honor and good faith who will take them by the hand and do them justice.” Much to the glee of King George III, the 13 colonies were breaking apart, leading the royal adviser to advise his king that the desperate former colonists would very soon “openly concert measures for entering into something like their former connections to Great Britain.” As delegate Luther Martin later recalled
This government is not completely consolidated, nor is it entirely Federal. . . . Who are the parties to it? The people—not the people as comprising one great body, but the people as composing 13 sovereignties. —James Madison
2016 election caused many pundits and citizens alike to decry the Electoral College. This book explains the dangerous and unconstitutional implications of the National Popular Vote Bill which is quietly passing in statehouses across the nation.
History has shown Kennedy’s concerns to be only too prescient. One might ask the exasperated voters of France, who in their 2017 direct election were told to select from a field of 11 candidates. Without the “channeling” effects of an Electoral College, the 2 established major party candidates were nudged out of the ensuing runoff by less than 2 percent of the vote, with the results that voters were faced with a choice between an extreme right-wing candidate who received less than 21 percent of the vote and an unknown maverick who received only 23 percent of the vote.
Since in a runoff one candidate must by predetermined contrivance receive a majority, this is what passed as democracy despite the fact that both candidates were opposed by almost two-thirds of the electorate. In the runoff, over 600,000 voters expressed their outrage with this poor imitation of democracy by casting a ballot blanc—the blank ballot.
To unsubstantiated claims that because of our two-party system similar affronts to democracy could not exist in America under a French- or Russian-style direct election—that is, an election in which voters must vote directly for a candidate from a list of candidates representing a number of different parties, followed by a runoff—Kennedy understood and explained that similar affronts to democracy certainly could indeed occur in the absence of the channeling effects of the Electoral College. This is because it is the Electoral College itself that ensures the stability of a two-party system in which a true majority or substantial plurality is required to elect a president. As he explained, “the facts of the matter are that a system [of direct election] will greatly increase the likelihood of a minority president.”
Problems were reflected in France which came within a whisker of electing a hard right-wing candidate opposed by 80 percent of the electorate. As it was, the “unknown” maverick candidate who won with only 23 percent of the vote in the first-stage election was the subject of violent countrywide demonstrations in 2018.
Professor Hardaway suggests that the National Popular vote movement which seeks to abolish the Electoral College by making readers aware of its agenda financing and goal of effectively amending the constitutional process by a means that takes place under the radar of the general public.
Today we have an electoral vote system which gives both large states and small states certain advantages that offset each other. Now it is proposed that we change all this. What the effects of these various changes will be on the Federal system, the two part system, and the large-state–small-state checks and balances system, no one knows. Nevertheless, it is proposed we change the system—for an unknown, untried, but obviously precarious system which was long ago abandoned in this country, which previous Congresses have rejected, and which has been thoroughly discredited in Europe. . . . Why should we be in such a hurry to adopt a drastic constitutional amendment which most of the voters do not know we are considering? The benefits which [the supporters of direct election] claim are at best speculative. There is obviously little to gain—but much to lose by tampering with the constitution.
Sheryl says that the public has now become aware that many bills are passed by congress without revealing much of the content to the legislators and definitely not to the public. In that way the small group of leaders in DC holds a monopoly of power and no one has the ability to question what’s happening. Obamacare was thousands of pages long and legislators were told to just pass it and we know the friction that has gone on around that legislation.
There have been other contested elections like the one we are now seeing in 2020. Every four or five presidential elections, the popular vote margin has been close enough to trigger recounts in at least one state and in many cases numerous states. The 1960 election provides perhaps the most illustrative example of what could happen in any of these close elections had a Russian-style national popular vote election system been in effect. According to the Congressional Quarterly, Richard Nixon won the national popular vote in that election by less than two-tenths of 1 percent. Fortunately for the nation and the stability of the U.S. government at a time of grave threat of international thermonuclear war, the very tricky question of who won the popular vote did not throw the country into a constitutional crisis. An election that could have resulted in interminable recounts, exhaustive litigation and appeals in courts of every state, and uncertainty as to which person would have his finger on the nuclear button did not do so. Instead, it resulted in a certain and clear cut decision: Kennedy was proclaimed and accepted as the undisputed winner of the election by virtue of his decisive 303–219 in the Electoral College. There were no postelection riots in the streets, no violent protests that Kennedy was not the legitimate winner, no foreign attempts to take advantage of internal civil unrest in the United States, and no appeals to the United Nations,
Sheryl asks, Might legislation or state legislation make changes to the campaign process which is highly expensive long and inciteful to the public causing much division?
Robert writes, “The bulk of campaign funds now go toward the most despised of all types of political advertising, namely television, the bulk of which are either negative in nature, distort opponents’ actual views, or take them out of context. Certainly, very little in the way of constructive or useful knowledge is to be gained by such irritating commercials especially in ignored states, where the NPVIC theory suggests that voters have presumably made up their minds and will not be converted by yet more irritating or fatuous commercials. It is no wonder that candidates who spend the most on commercials are often the losers in elections.
It is also true that such commercials can play an important part in the early phases of the election process, particularly in primaries where name recognition can be key. It
is fair to say, however, that by the time the two major parties have selected their candidate, name recognition is not the problem. While voters in ignored states may not have the same opportunity to attend live campaign events in which a candidate appears in the flesh to give a stump speech, such events can only be attended by a very small percentage of a state’s population, and the lack of such opportunity to attend such an event may be a small price to pay for not having to endure the barrage of commercials, unsolicited calls, and endless junk e-mails asking for contributions.
It might also be noted that in other democratic countries such as Great Britain, the campaign season and opportunity for barraging the public with mindless commercials is far more limited, and the voters there do not seem to feel deprived.”
Sheryl feels we are too invested in politics and the money spent could be better used to end much of the nation’s and world suffering. The political process now invested in every corporation pharmaceutical companies Big Tech MSM is causing great distress to everyday life and friction between families friends and co-workers. People harassing others for their political choices has become the outcome of these excesses and must be reevaluated so we can find harmony and balance once again. Most people are not that invested in political parties but for those who are there is much physical emotional and spiritual damage being done to them.
This movement is succeeding in state after state precisely because the public is uninformed about the Electoral college. The tactic of forming a cabal of states to circumvent the constitutional amendment process has the perceived advantage of avoiding the public scrutiny that would inevitably accompany any constitutional amendment process that would require a vote of two-thirds of Congress and at least three-quarters of the states. No doubt the supporters of the NPVIC are aware that whenever proposals for direct election have been proposed in Congress, the intense scrutiny that such proposals inevitably attract have always resulted in outright rejection of such schemes. A cabal of selected states, on the other hand, was thought by its supporters to require only the adoption of the NPVIC by the legislatures of as few as 11 large states representing 270 electoral votes. It thus has had the added perceived advantage of bypassing Congress entirely. Hearings in state legislatures, on the other hand, are often if not usually conducted under the public radar. Confirmation of this can be easily tested by asking a random person on the street if he or she has ever even heard of the NPVIC. The response is very likely to be one of puzzlement. Lobbyists for the NPVIC, primarily supported by financial interests in California, rarely if ever miss an opportunity to appear at isolated and little-publicized legislative hearings in an effort to induce it to join the NPVIC cabal. Those who might believe that such a cabal could never be successful in undermining the entire structure for presidential elections should be aware that as of 2012, state legislatures representing very close to half of the 270 electoral votes necessary to elect a president have become signatories to the NPVIC. However, on those relatively rare occasions when state legislative hearings on the NPVIC have come to the attention of concerned citizens or constitutional scholars, the NPVIC can be and has been roundly rejected as a threat to both federalism and democracy.
The abolition of the Electoral College and inauguration of a national popular vote would actually result in an outcome that is contrary to the goals of its many supporters. Professor Hardaway wrote, “In 1994, Praeger (now a part of ABC-CLIO) published my first book on this topic, The Electoral College and the Constitution: The Case for Preserving Federalism. At that time, the chief threat to preserving the federalist structure of the U.S. Constitution came in the form of congressional hearings seeking to abolish by amendment the federalist structure for presidential elections as enshrined in Articles I and II of the U.S. Constitution. Most notable of these were the 1956 hearings and later the 1969 and 1979 Birch Bayh Senate hearings on a constitutional amendment to abolish the Electoral College in favor of direct election. Emboldened by the claims of pollsters that an overwhelming majority of Americans supported abolishing the Electoral College, these hearings—after exhaustive testimony by constitutional scholars—ultimately rejected any such proposed amendments after its members came to understand how such an amendment would undermine not only the federalist structure of the Constitution but also democracy itself. For many of those not acquainted with the Founding Fathers’ federalist and democratic vision of the United States of America, however, the seductive sound and siren of a Russian-style national popular vote election continues to loom large
Professor Hardaway tells us why you feel it is imperative to keep the Electoral College and what can be done to achieve that. Over centuries new technology and larger populations and challenges to the voting practice have come about.
Professor Hardaway writes, “Nor is the absentee ballot the only means by which politicians have raised the convenience factor above considerations of voting integrity. New provisional ballot laws allow people to vote provisionally despite appearing at a voting booth on election day without registration, valid identification, proof of address, or any other indicia of eligibility to vote. But aside from encouraging illegal voting and fraud, the greatest danger posed by such laws is that the decision to count such votes is determined after the election by adversarial representatives of each political party. Such scenarios inevitably lead to interminable lawsuits and litigation. The result is an election decided not by voters but instead by lawyers and judges. Candidates dare not concede an election and let the nation return to normal life as long as provisional ballots are still to be counted, analyzed, and litigated. Candidates who dare to go ahead and concede an election before the interminable process of litigating provisional ballots is completed are lambasted for displaying a callous disregard of the provisional vote and consigning such votes to the dustbin of second-class votes. “
Victory in the Electoral College requires broad support across all major regions and many states, which should be considered as being even more reflective of a mandate since it reflects more than simply receiving concentrated support in one particular region or in a handful of states. In this regard, it has been observed that but for the overwhelming popular vote margin for Clinton in six California counties, Donald Trump would have won the national popular vote. Third and finally, most Americans are aware that presidential candidates campaign based on the allocation of electoral votes that the Constitution provides. In 2016, lucky New Yorkers and Californians were spared the misery of enduring fatuous campaign television ads because Trump did not waste his time campaigning in states where he knew he could not win. Under a Russian-style election he would surely have concentrated his efforts in high-population areas such as New York City, Chicago, and Los Angeles because that’s where the votes are. Instead, he campaigned in the heartland across regions and states where he felt he had a chance and could win—a strategy that resulted in winning the election.
Professor Hardaway would like readers to take away with them after reading Save the Electoral Colle to Save Democracy that in 1978 the Twentieth Century Fund enlisted the contributions of a distinguished panel of Americans to study the Electoral College and make recommendations. Members of the task force included historian Arthur Schlesinger, Jeane Kirkpatrick (later to be the U.S. representative at the United Nations), and other distinguished historians, lawyers, journalists, political scientists, and educators. The final recommendation of that group was the bonus plan. Although the plan itself proved to be just another inconsequential and ultimately ignored hybrid, the Twentieth Century Fund study is nevertheless notable for having conducted the most in-depth study of the Electoral College system. Although the members of the task force represented no political constituency and thus had no federalist interest to protect, they nevertheless represented some of the brightest and most independent thinkers who could have been brought together. Although in the end their study made a recommendation of the bonus plan, the study stands as perhaps the most persuasive defense of the Electoral College system. The preface to the study states that the Electoral College has weathered great changes—demographic and technological as well as political—in the nature of presidential elections, and more than once in the nation’s history, has been challenged. Yet it has endured, in part because it stands for some important and cherished principles, in part because proposals for replacing it have threatened those principles. In explaining how it reached its final recommendations, the task force stated that initially it saw no way of reconciling what was apparently irreconcilable. Several members noted that the probable consequences, some necessarily unforeseen, of changing the system might amount to a cure that was worse than the disease.
We thank you Robert M Hardaway for helping the ordinary layman to have a clearer understanding of the Electoral College which so many citizens do not and to understand the fine workings of our constitution and Bill of Rights to assure as our Founding Fathers intended that safeguards be available to protect the Electoral College.
In summarizing today’s episode Professor of Law Robert M. Hardaway has performed a most needed service towards educating the public about problems in Elections in the past so perhaps we can understand the present problems in the nation caused by the 2020 election which half the nation thinks was corrupted by local state representatives and a political party that used questionable ways to secure the vote due to a pandemic and fears that people could not show up at the voting polls. It is thought that the millions of unsolicited ballots sent out caused a shift in how the election turned out and that might have influenced the Electoral College. There also were many interferences by interested parties for an outcome they wanted including Big Tech MSM monied interests and foreign entities. It may have been for many in the nation seen as an unfair and contentious electoral process due to the great division in the nation. Americans have been spoiled by over 200 years of peaceful elections in which almost all cases have produced an immediate, clear-cut, and undisputed presidential winner even in such razor-thin elections as the 1960 election. Two exceptions generally prove the rule: the elections of 1876 and 2000. And now the election of 2020.
The election of 1876, a favorite topic of political history journals, has been variously described as “the worse. NPVIC advocates have even tried to include it on a list of “wrong winner” elections in which the popular vote winner was not the same as the electoral vote winner. In fact, this election was one that would have been disputed regardless of the election system in place. It took place at a time when the nation was still recovering from the trauma of the American Civil War, and emotions and wounds in both the North and the South still ran deep. By all accounts, the conduct of both political parties was shameful and inexcusable. In elections in which intimidation, fraud, corruption, and bribery are endemic, no system of election can provide a certain and undisputed outcome.
Even so, Hayes was obliged without fanfare to sneak into the White House through the backdoor on March 3, 1877, and take the oath of office in a private ceremony. As unsatisfactory as the outcome was, some small comfort may be found in the fact that compared to the state of the nation just a few years before in which over half a million Americans were being slaughtered en masse, the disputed election of 1876 can count not a single killing in the course of its final resolution. Nevertheless, NPVIC proponents continue to cite the 1876 election as an example of the election of the wrong president by comparing the electoral vote to an invalid and much-disputed popular vote We begin to see throughout the course of our history there have been problems between political parties’ ideology and National Elections. To those in 2020 who think this is the first time contention and conflict have affected our citizens that is not so.
Robert and I would hope during these challenging times in our nations evolution we would have you remember we are all Americans and the dream of our Founding Fathers was to live in peace prosperity and eventually equality for all. Their intentions were extremely ambitious for those times and still even for now, but they are in the best interests of our continuing Constitutional Democratic Republic Remember how far we have come and how far we still have to go.
I am your host Sheryl Glick author of A New Life Awaits Spirit Guided Insights to Support Global Awakening and invite you to visit my website www.sherylglick.com to listen to and read about visionaries scientists metaphysicians educators legal advocates and the arts and music discuss ways to know life on its energetic and physical levels to improve the quality of life with greater passion for love happiness and prosperity. Shows may also be heard on www.webtalkradio.net and www.dreamvisions7radio.com
